R.H. Abramsky

In a grievance arbitration concerning the discipline of several correctional officers, the union raised a preliminary objection to the admissibility of the employer's investigation report and the investigator's related testimony.

The union argued the report was hearsay, contained irrelevant opinions, and would prejudice the proceedings.

The arbitrator dismissed the objection, ruling that the report was relevant as it formed the basis for the employer's disciplinary decisions.

The arbitrator noted that admitting the report does not usurp the board's role, as the board will make its own determination on just cause based on all the evidence, and hearsay is admissible in arbitration.

During a grievance hearing concerning allegations that workplace harassment caused the grievor's stress and anxiety, the Employer sought production of the grievor's decoded OHIP summary for a period predating the allegations.

The Union opposed the request, arguing it was premature and overly broad.

The Board granted the Employer's request, finding that the grievor's pre-existing medical condition and causation were significant issues in dispute.

The Board ordered production subject to conditions limiting access to Employer counsel and restricting its use to the defense of the grievance.

The Union brought a motion for an indefinite adjournment of grievance arbitration proceedings concerning the discipline and discharge of several correctional officers, pending the outcome of related criminal trials for assault and obstructing justice.

The Union argued that recent Supreme Court of Canada jurisprudence and section 48.1(1) of the Crown Employees Collective Bargaining Act, 1993, which make criminal convictions conclusive evidence in arbitration, necessitated the adjournment to avoid inconsistent results and prejudice.

The arbitrator denied the motion for an indefinite adjournment, noting that no trial date had been set, the delay would be substantial and prejudicial to the employer's interest in expedition, and the arbitration would still need to proceed regardless of the criminal trial's outcome because not all grievors were charged and the discipline encompassed matters beyond the criminal charges.

A short adjournment was granted until after the preliminary inquiry.

The Union brought a motion for interim relief regarding the Employer's decision not to renew a temporary transfer agreement for a classified court reporter.

The grievor had been temporarily transferred to the Milton courthouse due to a phobia of highway driving that made commuting to the new Dufferin/Finch location difficult.

The Employer decided not to renew the agreement due to operational concerns regarding the grievor's inability to type transcripts after hours and ongoing conflict and harassment allegations between the grievor and her manager.

The Board found it had jurisdiction and that there was an arguable case on the merits, but denied the motion because the balance of harm favoured the Employer, given the operational concerns and the potential for continuing conflict.

The Ministry alleged that the grievor breached a confidentiality provision in a settlement agreement resolving a harassment grievance.

The settlement included a $1,000 payment and a strict confidentiality clause.

A co-worker disclosed specific terms of the settlement to management, claiming the grievor had told her.

The grievor denied disclosing the terms.

Applying the Faryna v Chorny standard for assessing credibility, the arbitrator found it more probable than not that the grievor had disclosed the terms to the co-worker, given the accuracy of the co-worker's knowledge.

The arbitrator declared a breach of the confidentiality provision and ordered the grievor to return the $1,000 settlement payment to deter future breaches.

The grievor, a probationary full-time customer service representative at the LCBO, was discharged after covert surveillance revealed he committed seven acts of theft totaling $376.40 by processing fraudulent voids and returns.

The union grieved the discharge, arguing that the grievor's actions were mitigated by depression, Attention Deficit Disorder, and alcohol abuse following a romantic breakup.

The arbitrator dismissed the grievance, finding that the medical evidence failed to establish a causal connection between the grievor's condition and the deliberate, repeated acts of theft.

Given the grievor's probationary status, the seriousness of the breach of trust, and the need for general deterrence, the arbitrator declined to substitute a lesser penalty.

The employer raised a preliminary objection regarding the timeliness of a group grievance filed by court reporters concerning a change in work policy that required them to perform authorized duties on overtime hours without overtime pay.

The employer argued the change occurred years ago and the grievance was untimely.

The union argued it was a continuing grievance.

The arbitrator found that the grievance alleged an ongoing failure to comply with the overtime requirements of the collective agreement, constituting a continuing grievance.

The preliminary objection based on timeliness was dismissed.